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Monday, May 08, 2006

Contract not equal to regular appointments

IN THE HIGH COURT OF DELHI AT NEW DELHI



SUBJECT: SERVICE LAW-EQUAL PAY FOR EQUAL WORK



W.P.(C) No. 6587/2003 & C.W. Nos. 351-70/2005



Date of Hearing: January 27, 2005



Date of Decision: January 31, 2005



Yuvneet Kumar & Ors. ...Petitioners

Through : Mr. Pradeep Gupta, Advocate



VERSUS



M.C.D. & ORS. ...Respondents

Through : Mr. Ashok Bhasin, Advocate









VIKRAMAJIT SEN, J.



1. The Petitioners claim is that although they have been appointed on contract basis they are legally entitled to receive salaries in the scale of regular employees on the principle of equal pay for equal work.



2. The preponderant view enunciated by the Hon'ble Supreme Court is that the persons such as the Petitioners would not per se have the right to claim salaries equal to that of regular employees. Reliance has been placed by learned counsel for the Petitioners on the thought provoking decision titled Randhir Singh vs. Union of India and others, AIR 1982 SC 879. The opening paragraph deserves to be thoroughly digested for its perspicuous legal content; it also commends careful reading because of its literary excellence. In all humility the passage is reproduced:

'Equal pay for equal work' is not a mere demagogic slogan. It is a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts. Article 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of 'equal pay for equal work for both men and women'. Articles 14 and 19 guarantee respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and Art. 32 provides the remedy for the enforcement of the fundamental rights. So the petitioner has invoked the jurisdiction of this Court under Art. 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him. True, he is the merest microbe in the mightly organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is that it enables him to directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so. Hitherto the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a 'fair and satisfactory' distribution of the buttered loaves amongst themselves. Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward looking posture of this Court the underprivileged also are clamouring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the five star hotel.

The decision, however, may not be apposite to the present case for the reason that the Hon'ble Supreme Court was not concerned with emoluments payable to contractual/ temporary/ ad-hoc employees. A comparative analysis of pay scales of drivers in the various Forces and Government Departments had been undertaken, and in these circumstances uniformity had been recommended.



3. Learned counsel for the Petitioners has also relied on Bhagwan Dass and others vs. State of Haryana and others, (1987) 4 SCC 634. In that case the Court had observed that the burden of proving similarity in nature of work is on the aggrieved temporary appointees but once the burden is discharged, the onus shifts on the Government.



4. Learned counsel for the Respondent had drawn my attention to CW 10020-31/2004 where the very same Petitioners have assailed the holding of an examination for regular appointment in respect of the posts at which they are contractually employed for a fixed tenure. It appears that two years experience is contemplated as one of the eligibility criteria and the Respondents are more than willing to consider the Petitioners contractual services as working experience in that context. Mr. Gupta, learned counsel for the Petitioner, argues that those writ petitions are on a totally distinct point the distinguishing feature being that the only question raised in the present batch of petitions is whether the Petitioners are entitled to claim monetary compensation/emoluments according to the prescribed pay scale on the application of the principle of equal pay for equal work. I am also informed that all the Petitioners have appeared in the said examination and, therefore, may be precluded from challenging its legal propriety. The Petitioners would serve their cause by paying attention to the pronouncements in Om Prakash Shukla vs. Akhilesh Kumar Shukla and Others, 1986(Supp) SCC 285, Madan Lal and Others vs. State of J & K and Others, (1995) 3 SCC 486 and Chandra Prakash Tiwari and Others vs. Shakuntala Shukla and Others, (2002) 6 SCC 127. This question does not arise in these proceedings. One can only pray that the Petitioners are successful in the examination.



5. The question which should next be considered is the nature of the rights that were created and/or evolved in favour of the Petitioners consequent on their temporary engagement. In Jaswant Singh and others vs. Union of India and others, 1980 SCC (L&S) 36, it was held that no Government servant can claim entitlement to a declaration that he is in quasi-permanent service, because that does not depend upon the mere fact of his being in service for a particular number of years. Certainly his terminal benefits could be protected. It was further observed that the Work-Charged employees are engaged on a temporary basis and are eligible to claim protection under the Industrial Disputes Act. In State of Haryana & Others vs. Jasmer Singh and others, (1996) 11 SCC 77 = AIR 1997 SC 1788, it was held that daily wagers could not be equated with regular workman and can at best claim payment of minimum wages only. A different Bench of the Hon'ble Supreme Court has made an essentially identical enunciation of the law in State of Haryana vs. Surinder Kumar, AIR 1997 SC 2129. The decision in State of Maharashtra vs. Purshottam and others, (1996) 2 SCC 266 refers to Jaswant Singh's case (supra). The Hon'ble Court observed as follows:



"6. At the outset, it may be stated that a work-charged establishment means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to `works'. The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work. The work-charged establishment employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. The character and nature of their tenure has been fully discussed by this Court in the case of Jaswant Singh v. Union of India. In the service jurisprudence the expression `cadre' means the unit of strength of a service or a part of it as determined by the employer. And it is too well settled that services rendered by an employee in one cadre cannot cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred. This being the position, ordinarily the services rendered by an employee in a work-charged establishment is not to be taken into account for his seniority in the regular establishment particularly when the tenure in the work-charged establishment is of a precarious nature and it automatically ceases after the d project is over. The normal rule of seniority is the date of entry into the cadre or the position obtained in the examination when appointment is made by any competitive examination. Therefore, in the present case ordinarily seniority would have been determined on the basis of the date of absorption of the employee in the regular establishment, but the State Government itself has passed the resolution deciding a deemed date of absorption of the employees who were initially recruited in the charged establishment and later on absorbed in the regular establishment. Therefore, the Government of Maharashtra in the Public Works and Housing Department by its resolutions dated 15-2-1977 and 19-2-1977 decided that a Junior Engineer having work-charged service to his credit should be assigned a "deemed date" which should be one day prior to the date on which his immediate junior on work-charged establishment or from open market was appointed on regular temporary establishment in the same Circle. This deemed date obviously is the deemed date of absorption in the regular establishment and on the basis of that deemed date the seniority of the Junior Engineers in the Circle is maintained. It is undisputed that the promotion to the post of Sub-Divisional Engineer, which is a Class II post and is in the State Cadre is made from amongst the Junior Engineers. The question, therefore, that arises for consideration is whether it is open for the employer to maintain a seniority list of Junior Engineers of different Circles on the basis of their actual date of absorption in regular establishment and not on the basis of their deemed date of absorption and consider promotion on that basis? The answer must be in the negative. The promotion to the post of Sub-Divisional Engineer is made according to a set of Rules called the Maharashtra Service of Engineers, Class I and Class II Cadre Rules. Under Rule 13(c) of the said Rules, appointments to the cadre of Sub-Divisional Engineers is made by promotion from amongst Junior Engineer graduates from the Subordinate Service of Engineers. Under Rule 15, a person to be eligible for promotion to the post of Sub-Divisional Engineer must have rendered 3 years of minimum service as a Junior Engineer. Under Rule 16(a), the promotion to the post of Sub-Divisional Engineer is made by a selection from the Statewise seniority list of Junior Engineers maintained by the Irrigation and Power Department and Buildings and Communications Department, separately. But the Rule is totally silent as to how the Statewise seniority list of Junior Engineers will b drawn up. In other words, it does not stipulate that the Statewise seniority list of Junior Engineers will be drawn upto on the basis of their respective dates of absorption/employment as a Junior Engineer in regular establishment or on the basis of the deemed date which is to be determined in accordance with the two government resolutions referred to earlier. In the absence of any specific provision it would be only reasonable to construe that the Statewise seniority list has to be prepared on the basis of seniority list already prepared in the Circle indicating the respective deemed dates of each such Junior Engineer. The counsel for the appellant no doubt is fully justified in raising the contention that the two government resolutions having been specifically meant for drawing up of the seniority list in the Circle, the Tribunal erred in law in directing to draw up the seniority list by giving the benefits of those Regulations in question. But as has been stated earlier, in the absence of any provision in the Recruitment Rules the seniority list of the Junior Engineers when is prepared under Rule 16(a) for the purpose of giving promotion to the post of Sub-Divisional Engineer the same should be made taking into account the deemed date of each of the Junior Engineers in the Circle and prepare the Statewise seniority list."

In State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517 the Hon'ble Court recognised that Work-Charged employees and employees on regular establishment of the PWD comprised two separate and distinct classes. It held that the claim of the Work-Charged Petitioners for granting them project allowance was misconceived and so was their claim that they should be given all benefits which are made available to regular employees. Very recently, in State of Orissa and Others vs. Balaram Sahu & Others, (2003) 1 SCC 250, the Apex Court had chartered a slightly different course in that it had stated that in connection with the claim of equal pay for equal work it is for the claimants of parity to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination. The Court also pithily observed that equal pay for unequal work also negates the right under Article 14 i.e. that regular employees may in some circumstances be performing longer and more onerous duties with greater responsibilities, when compared with daily wagers and should not be similarly treated. Jasmer Singh's case (supra) was repeatedly referred to. These views have also been voiced in Ashwani Kumar vs. State of Bihar, (1997) 2 SCC 1 and Dr. Chanchal Goyal vs. State of Rajasthan, (2003) 3 SCC 485. It would also be of advantage to note similar pronouncements made in Associated Banks Officers Association vs. State Bank of India, JT 1997 (8) SC 422 and Chief Superintendent,

Government Livestock Farm Hissar vs. Ramesh Kumar, (1997) 11 SCC 363.



7. In the present cases I am of the view that the Petitioners have failed to discharge the burden that they have performed duties identical to those of the regular employees. This would require a determination of disputed question of fact which ought not to be entertained in writ proceedings. The question is left open, and may be agitated in regular civil proceedings. Learned counsel has contended that the principles of estoppel would not arise since the Petitioners fundamental rights are in question. It will be recalled that the Petitioners had voluntarily accepted contractual employment. The argument does not commend itself because it is not a fundamental right that a person should not be employed on a contract for a fixed term and salary.



8. For these reasons these writ petitions are dismissed with no order as to costs.



January 31, 2005 (VIKRAMAJIT SEN)

JUDGE

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